TV Catchup and Section 73 – (Nearly) The End of the Road?

The Court of Appeal in England has recently made a second reference to the Court of Justice of the European Union (CJEU) in the case brought by UK free-to-air broadcasters ITV, Channel 4 and Channel 5 against the Internet streaming service TV Catchup (TVC) in relation to the unauthorised streaming of their channels by TVC. However, the CJEU’s decision looks likely to be rendered irrelevant by legislative changes proposed by the Government.

Previous decisions in the case (see here and here) had left TVC able to stream a limited number of channels (those of the UK public service broadcasters, known as “qualifying services”) via the Internet because of the defence provided by s.73 of the Copyright, Designs and Patents Act 1988 (CDPA). The defence permits qualifying services to be retransmitted by cable without infringing copyright – this had been held to include retransmission via the Internet earlier in the proceedings, but did not include transmission to mobile devices via a mobile telephone network.

TVC appealed the exclusion of mobile devices from the defence but were given fairly short thrift by the Court of Appeal – the section only applies where the retransmission does not involve wireless telegraphy.

The broader issue in the case relates to the broadcasters’ appeal on the question of whether the s.73 defence (and, in particular, including the Internet within its scope) is compatible with the EU Copyright Directive, which lists the permissible exceptions to copyright. A s.73-type defence is not specifically listed in the Directive, but Article 9 of the Directive rather opaquely permits Member States to retain provisions covering “access to cable of broadcasting services”.

After analysing the legislative framework behind the CDPA and the Directive, the Court of Appeal ultimately decided to refer the issue of the scope of Article 9 to the CJEU. There are a number of possible outcomes, including the CJEU deciding that Article 9 permits the s.73 defence (including retransmission via the Internet), that it should be limited to “traditional” cable, or that it only permits retransmission where there is a statutory “must carry” obligation in relation to the relevant broadcasting service.

However, the CJEU decision is likely to be of little more than academic interest by the time it is made. The UK Government has recently stated its intention to remove s 73, no doubt influenced by the European Commission’s threat of infringement proceedings based on the Commission’s view that the section is incompatible with EU law.